Land and Environment Court of New South Wales CITATION : Mike George Planning Pty Ltd v Willoughby Council [2007] NSWLEC 583 APPLICANT Mike George Planning Pty Ltd PARTIES : RESPONDENT Willoughby Council FILE NUMBER(S) : 10271 of 2007 CORAM: Hoffman C KEY ISSUES: Development Application :- Play school and day care facility, traffic and parking, scale and bulk inconsistent with character of adjacent houses, landscaped area, private open space, solar access, noise, privacy, overshadowing and impact of acoustic barriers. Environmental Planning and Assessment Act 1979 Children's Services Regulations 2004 LEGISLATION CITED: Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Willoughby Local Environmental Plan 1995 Willoughby Development Control Plan--Parts A, B, C and D. Guidelines for Development of Child Care Centres DATES OF HEARING: 1-2/08/2007 and 16/08/2007 DATE OF JUDGMENT: 11 October 2007 APPLICANT Mr C. McEwen, barrister Instructed by Ms S. Hill of Susan Hill & Associates LEGAL REPRESENTATIVES: RESPONDENT Ms H. Irish, barrister Instructed by Ms Townsend of Malleson Stephen Jaques JUDGMENT: - 15 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 11 October 2007 10271 of 2007 Mike George Planning Pty Ltd v Willoughby Council JUDGMENT 1 This is a Class 1 Appeal No. 10271 of 2007 between Mike George Planning Pty Ltd and Willoughby Council in regard to the refusal of a play school and day-care facility at No. 7-9 Donnelly Road, Naremburn. The Site 2 The subject site is a triangular shaped parcel of land being Lot 1 and 2 in DP 1074533, Lot 1 has a site area of 549.7 sq m and Lot 2 being 943.5 sq m giving a total site area of 1493.2s q m. It has a 14 m frontage at the dead end of Donnelly Street. 3 The subject site slopes from the north/west corner to the south/east (Donnelly Road) corner of the subject site, with a fall of approximately 5m, There are four (4) She Oak trees on the nature strip at the south/east corner of the site and established trees in the rear north/west comer. 4 The two (2) allotments forming the subject site contain an existing dwelling on the front lot (No. 9) with the rear lot, having an access handle on the eastern boundary, being currently vacant (No. 7). The two lots share the drive crossing from the dead end of the street, and then split with the axe-handle drive going up the east of the site to No. 7 and the other drive going across the front setback of No. 9 to the west side of the existing house and up to its garage at the rear. 5 Development consent No 2003/704 was issued on 3 November 2004 for an attached dual occupancy development, being two (2) storeys with attached garages for 4 cars, on this rear allotment of land (No. 7). The Locality 6 Donnelly Road is divided by the Warringah Expressway and the subject site is located at the dead end of the eastern stub of Donnelly Road. The stub is only about 30 m long from Brook Street. The site can only be accessed via Brook Street. This portion of Donnelly Road contains six (6) residential allotments all on the north side of the street. 7 On the opposite side of the road is an acoustic wall associated with the freeway. There is a row of She Oaks between the wall and the kerb and gutter with no space for a footpath. 8 This portion of Donnelly Road is characterised by part one (1) and two (2) storey dwellings with driveway accesses from Donnelly Road, although some houses have no garage, or a garage or only a car space in the front setback. 9 Even with the narrowness (7.5 metre kerb to kerb) of the street, there is parking for 4 cars restriction on the south side of the street which is in the North Sydney Municipality. Due to the drive crossings to the houses on the north side of the street there is only one (1) on-street car space outside No. 5 directly adjacent the drive crossing to the subject site. 10 Brook St is an arterial road that passes under the freeway and connects Naremburn with Crows Nest in the south at Chandos St. At the freeway underpass on both sides are traffic light intersections to freeway access ramps. The northern "on ramp" to the freeway is opposite the intersection of Brook and Donnelly. The next intersection uphill on Brook and north is another lights controlled intersection at Merrenburn Ave. Merrenburn continues west to an overbridge across the freeway and connects with Willoughby Road that runs south to the Crows Nest shopping centre. Along the way it intersects with Chandos. The proposal 11 The development proposal is for alterations/conversion to the existing dwelling and construction of a new two (2) storey building above basement at the rear of the existing dwelling to accommodate a child care centre for seventy two (72) children at 7-9 Donnelly Road, Naremburn. 12 The application proposes ten (10) full time staff members with the hours of operation being 7.00 am to 6.30 prn Monday to Friday. 13 The development is described as: a. Basement Car Park The basement car park is accessed from the existing drive crossing and up the axe-handle on the eastern boundary, and continues through the basement of the new building to the western boundary adjacent the freeway, and then down the west side of the existing house, providing one way vehicle movement, exiting the site at the same eastern drive crossing as the entry. The basement provides seven (7) drop off/pick up spaces, ten (10) staff parking spaces, two (2) residence spaces and a loading dock. The entry driveway up the eastern boundary adjoining No.5 Donnelly Road passes by a number of windows in that residence and tall acoustic fences are required on the boundary to reduce noise for the occupants. b. Ground Floor The ground floor includes the conversion of the existing dwelling to provide three (3) cot rooms, nappy change room, bottle preparation area, laundry and craft area. On the west side of the existing house between it and the exit driveway beside the freeway, there is an outdoor play area. At the rear of the existing dwelling and connecting into the new building there is an office and reception area. Due to the slope of the site this reception area is only 1 m higher than the basement, and there is a disable person lift and stairs to reception and to the floor above the basement. The "Ground Floor" is a split-level design with the floor above the basement being about 2 m above the reception and existing house floor. This upper "Ground Floor" has a further three areas for 2-5 year-olds. There is access to an outdoor play area along the northern boundary from two of these areas. A retaining wall and tall acoustic fence is proposed on the northern boundary that is the back fence for houses on Merrenburn Ave. There is access to the north-western corner of the site adjacent the freeway wall from the third 2-5 year old area on this upper "Ground Floor". There are some existing mature trees to be kept in this play area. The wall of the freeway is to have acoustic absorptive material applied, as are the west facing walls of the existing house, all to reduce reverberation of freeway and on-site car noise. The new building contains indoor play areas, toilets, storage areas, kitchen and staff facilities including a disabled toilet. c. First Floor The first floor of the proposed new building at the rear of the site contains a three (3) bedroom plus study residential unit for a manager. It is accessed via an external stair on the west end of the new building. It rises from the basement level close to the flat's allocated parking spots. The stairs come up to north-west corner play area and then up to the combined living/dining/kitchen of the flat and its private terrace all facing west towards the freeway. An acoustic wall is proposed on the west and south sides of the terrace and a planter box on the north side facing the uphill houses on Merrenburn Ave. The Statutory Controls Regulations: Children's Services Regulations 2004 Regional Environmental Planning Instruments: Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Local Environmental Planning Instruments Willoughby Local Environmental Plan 1995 Zoning: 2(a) - Residential Development Control Plans: Willoughby Development Control Plan--Parts A, B, C and D. Policies: Guidelines for Development of Child Care Centres The contentions 1. Traff i c and Parking The development proposal will result in unsatisfactory queuing delays in Donnelly Road and will create a traffic hazard at the intersection of Donnelly Road and Brook Street, and in Merrenburn Avenue. 2. Insufficient carparking and pick-up/drop-off space. This issue was deleted. 3. Overdevelopment of the Site The scale and bulk of the proposed building is inconsistent with housing in Donnelly Road and Merrenburn Avenue Particulars (a) Clause 2(b), (c), (d) of Willoughby Local Environmental Plan 1995 (Aims and Objectives of WLEP); (b) Clause 13D of Willoughby Local Environmental Plan 1995 (Amenity); (c) Clause 14A of Willoughby Local Environmental Plan 1995 (General Objectives for Low Density Residential Areas); (d) Clause 14B of Willoughby Local Environmental Plan 1995 (Specific Objective of Residential 2(a) Zone); and (e) Section 1(l)(iii) & (v) of Council's guidelines for the Development of Child Care Facilities (Objectives). 4. Landscaping The development proposal does not provide sufficient landscaped area for alI of the uses proposed on the site, will result in the loss of mature trees without adequate scope for replacement plantings and fails to meet the requirements of Part C.9 of Willoughby Development Control Plan. Particulars (a) Clause 14A(c) of Willoughby Local Environmental Plan 1995 (General Objectives for Low density Residential Areas); (b) Part C.9 of Willoughby Development Control Plan (Landscaping); and (c) Section 7 of council's guidelines for the development of Child Care Facilities (Guidelines for Centre Based Child care Facilities). 5. Private Open Space The proposal does not provide adequate private open space areas for occupants of the proposed dwelling. Particulars Part D.2.6 of Willoughby Development Control Plan (Open Space). 6. Solar Access Inadequate solar access is available for the proposed open space and play areas for the child care centre. Particulars Section 7(i)(c) of Council's Guidelines for the Development of Child Care Facilities (Solar Access for Outdoor Play Areas). 7. Amenity Impacts. The proposal will result in unreasonable amenity impacts to neighbours in terms of noise, overshadowing, privacy, bulk and scale and inadequate landscaping. Particulars (a) Clause 2(b),(c),(d),(l) of Willoughby Local Environmental Plan 1995 (Objectives of WLEP); (b) Clause 13D of Willoughby Local Environmental Plan 1995 (Amenity); (c) Clause 14A(a),(b),(c) of Willoughby Local Environmental Plan 1995 (General Objectives for Low Density Residential Areas); and (d) Clause 14B(1) of, Willoughby Local Environmental Plan 1995 (Specific Objective of Residential 2(a) Zone). The evidence. 14 The respondent's evidence came from: · Mr C. E. Hallam, consultant traffic engineer. · Mr P. R. Johnson, objector and neighbour of 5 Donnelly Rd · Mr R Manning objector of No. 1 Donnelly Rd. · Ms V Marsden objector 1A Donnelly Rd. · Mr J Savage objector of 6 Merrenburn Ave that is a neighbour at the rear of the site. Mr Savage had been appointed spokesperson for 12 other objectors in Merrenburn and Palmer and Dodds Streets. Their submission is in Exhibit 10. · Mrs J Savage objector of 6 Merrenburn Ave. · Mrs K Scott objector of 9 Merrenburn Ave · Mrs A Stevens objector of 8a Merrrenburn Ave that is a neighbour at the rear of the site. 15 The applicant's evidence came from: · Mr J.E. Coady, consultant traffic engineer. 16 A report from A.D. Envirotech Australia was tendered showing no soil contaminants that would make the site unsuitable. An air quality report by the same consultant was tendered taking into account the freeway proximity and it concluded the air would be acceptable for children. A report from Acoustic Logic Consultancy was tendered assessing the freeway noise levels, and those that might be generated by children at play; it found that subject to noise absorptive materials being installed as previously mentioned, plus window sealing, air-conditioning and other noise control works, there was no reason sufficient for refusal. It also concluded the noise environment in the play areas would be acceptable for the children. The hydraulic engineering report and installations proposed by Complete Consultants was also tendered. An arboricultural assessment was tendered from Urban Forestry Australia. The Statement of Environmental Effects assessment by Mike George Planning Pty Ltd was tendered and it found the impacts to be suitably ameliorated by the final design of the proposal and draft conditions. 17 None of these consultants were called for cross-examination by the respondent. 18 The parties agreed on a single acoustic expert, Mr N. Gross who was appointed by the Court. 19 The final design of the proposal is in plans in Exhibit Q with landscape plans in Exhibit E. The updated draft conditions are in Exhibits 14 and 15. 20 The objectors' concerns are in summary: · The only legal way to enter Donnelly is northbound on Brooks and left into the proposal. The only legal way out of Donnelly is left into Brook heading north. The consequence of this is that parents, no matter where they come from, have to "go around most of the block" of Brooks, Merrenburn, Willoughby, Chandos and Brooks. It is a very congested route in peak traffic with long queues at the four (4) sets of traffic lights involved. This is frustrating for drivers in a hurry, and tempts them to do unusual or unsafe or illegal manoeuvres. · Staff and parents coming and going must generate 120-200 extra movements in Donnelly and Brook St, and many in Merrenburn Ave each day. Already residents notice many unsafe U-turns in Merrenburn for those who come out of Marks St where it is "no right turn" into Brook………..they go south on Brook and turn right into Merrenburn then do a U-turn to go back and north on Brook. The proposal will have a lot of parents who want to go to work in the city after dropping-off kids, and will do the same U-turn rather than go "around the block". There are traffic queues in Merrenburn at the lights so drivers swerve across into private driveways and then reverse into the traffic. The proposal will add to this. · Residents are tired of drivers using private driveways for this manoeuvre, and it is unsafe for all. · Merrenburn and Dodds and Palmer streets are already parked out by commuters. The "White Rabbit" play school in Merrenburn has little on-site parking and parents manoeuvring in the street cause further congestion. Some then park all day in the above streets to commute to work by bus. This adds even more congestion and safety problems. Since there is "no Parking" in Brook and little in Donnelly, parents using the proposal may well drop off the kid, park in one of the above streets and commute by bus to the city, making it all worse. · Donnelly Street is a 30m long dead end street that is 7.5 metre wide kerb to kerb with no turning bulb at the end, and the entry to the site is directly off the dead end. · There is on-street parking in Donnelly on the south for 4 cars and on the north one space directly adjacent the proposal's driveway. No. 5 has no drive entry and that is its only space to park its car, except for mounting the footpath and parking in its front yard. The on-street car spaces will be competed for by parents against the commuters parking there now. · Anyone trying to turn in the street to use the car space outside No. 5 will block any others trying to enter or leave the site. Those parked on the south side will restrict movement. · The driveway is one car wide, so 2 cars cannot enter and leave at the same time. One will have to wait causing queues in the narrow street that is 7.5 m wide kerb to kerb. · With a car parked outside No. 5, the carriageway is 5 m wide, and the driveway of the proposal being at the very end of the street any car queued to await an exiting car will prevent that car from turning and passing. It will not take long for a queue to back up to Brook. The 30 m of Donnelly is only 5 cars long. If that happens no one will get in or out of the site, or the residents houses, the street will be a traffic jam. · The driveway to the site has to be crossed in two places by any pedestrians coming or going from the street to the proposal. This adds to safety and driving problems. · Putting young children in the noisy and polluted proximity of the freeway is not a good idea. · Will the basement carpark be enough? There are only 7 spaces for parents to drop-off/pick-up. What about "parents meetings" or "parents interviews" or "family functions" such as Christmas concerts. There will be far more than 7 parent-cars wanting to park. Will they jam into Donnelly St and the proposal's driveway? Donnelly will be impassable for residents. There is "no Parking" in Brook, so the only alternative is for parents to park in Merrenburn and walk several hundred metres to the site. This is impractical. · Emergency services. If there is a fire, where do the children go? Donnelly St will be full if only one fire-truck comes in, and the children cannot be mixed with that and the firemen. There is no safe place to take the children, Brook St is too busy. 21 Mr Johnson had additional concerns about: · his backyard and living room west windows being overshadowed by the large new building uphill from his house and yard in winter. · Also the high fence along the entry driveway had to be raised to the height of his window tops to achieve the acoustic consultants noise reduction requirements. · Parents' cars for 72 children going uphill in the driveway to the basement carpark would reverberate between the buildings. The approved development on No.7 for 2 flats and 4 cars gave acceptable noise impact, but say, 72 cars each morning and each night is completely unacceptable 1 m from his windows. · The Perspex top section of the fence said to maintain solar and daylight access to his windows would discolour in time and be quite ugly and enclosing to his rooms. In any case how could anyone rely on the Perspex being kept clean. It would get dirty and need weekly maintenance. If that is not done does he have to complain to council to get cleaning, and how long would that take? · At the moment he has a 6 m separation building to building for light and air to his windows. This would become just 1 m wide. The reduction in amenity is unacceptable. · Currently he uses the only on-street car space for his car. It is directly adjacent the entry to the site with the maneuvering difficulties referred to above, the potential is high for his car or anyone else's to be damaged by 120-200 car movements per day passing so close. · He had an application to council to put a driveway in and a parking space in his front yard. He did not need it now, but he would if the proposal went ahead. If approved that would put his drive crossing beside the proposal's. The congestion likely at the single car width drive entry to the site would still create hazards for him and the proposal's visitors. Drivers would most likely take a diagonal route over this crossing. · Donnelly is currently quiet enough amenity for his children to play there. That will disappear if the proposal goes ahead. Congestion and hazard will replace quiet amenity. · There must be an adverse effect upon the value of his property. 22 Mr Savage had additional concerns about the privacy and noise for residents of Merrenburn whose properties backed onto the site. He said the plans they had seen did not have the play area directly adjoining the boundary. The tall acoustic and privacy fence now proposed with Perspex on the top section would not be pleasant to look at especially when the Perspex discolors or gets dirty. 23 The traffic engineers had a joint report in evidence, and gave oral evidence at the hearing. They agreed the stub of Donnelly St is about 30m long and 7.5m kerb to kerb. They agreed with a car parked outside No. 5 in the on-street space, any car trying to enter the site would have to wait for an exiting car some distance back so the exiting car could have clearance to manoeuvre. This would reduce the queuing space in the street to 4 cars. 24 They said the north side of the street would have to be changed to "No Parking". This would provide very restricted 2-way movement in the 5 metre width left once cars parked on the south side are allowed for. 25 In Brook St they agreed since the Lane Cove Tunnel opened traffic counts in Brook had reduced. Although traffic in Brook at peak periods is still heavy arterial, the traffic lights timing for entry and exit to the freeway left gaps between pods of traffic sufficient for cars to get in and out of Donnelly with safety. 26 A gap in the median strip allowed cars from Donnelly to turn south on Brooks or enter the city-bound freeway ramp. The small number of cars existing in Donnelly made this acceptable, however with the proposal, both agreed right-turn out of Donnelly must be stopped in peak traffic periods at least. 27 They estimated traffic generation of the proposal to be 57 to 69 car movements per hour and felt that based on INTANAL computer analysis of the Brook/Donnelly intersection, the in- and out- movements would not cause more than 4 cars to queue and this is acceptable in their opinion. 28 A movement is an "in" or an "out", so the total number of cars in the morning and in the afternoon would be about 72 parents' cars and 10 staff cars, plus delivery/service vehicles during the day. That is 320 movements per day minimum. 29 At Merrenburn they agreed the likely additional cars due to the proposal would be about 21 to 38 per hour. Mr Coady did not think this would have any significant effect on Merrenburn and in traffic design, he had to presume drivers would not make illegal or unsafe U-turns. Mr Hallam did not dispute the numbers and said this alone would not justify refusal, but it is a factor in the overall assessment of traffic- and non-traffic issues. 30 In regard to on-site parking, Mr Hallam did not object to Coady's re-allocation of the 20 spaces to be 7 staff, 2 resident and 11 for parents versus the proposed 7 for parents, 10 staff, 2 resident and one loading bay. 31 In regard to the drive entry of single car width, the applicant said it was that narrow because the council wanted to preserve a casuarina tree in the footpath reserve. Mr Coady thought that there is clear vision for approaching and departing drivers, so there would be no problem with one car waiting for another. The exiting car could wait for the incoming, and if there was a queue it would be on-site on the exit driveway. Also Donnelly is not a sub-arterial or arterial road, and the length of narrow driveway is only about 10m long. AS/NZS 2890.1-2004 Category 1 driveways only triggered the 5.5 m width if 30m long. 32 Mr Hallam said the RTA and other applicable guidelines require a 5.5m driveway width for at least the first 6 m where traffic volume is more than 30 veh/hour. This site generates much more than that in morning and afternoon drop-off/pick-up. 33 It seems to me that there are two factors in the traffic analysis that are critical. The congestion and potential queueing at the site entry and the potential of 4 cars to queue in Donnelly due to the intersection with Brook St. Put together with the narrow width of Donnelly and the on-street car spaces (even without the one adjacent the proposal's footpath crossing), the situation spells traffic jam. Neither of the engineers seems to have appreciated that, particularly if a polite driver stops in Donnelly to let a few exit instead of Mr Coady's assumption the exiting driver would wait. 34 Another consideration on amenity is the amenity impacts on No. 5 Donnelly. As Mr Johnson observed 72 plus cars will come up the driveway 1 m from his windows every week-morning and every week-night. This will commence with staff of up to 10 cars before 7 am, then the parents from 7-9 am, and in the afternoon the parents come back from say 4.30 pm until 6.30 pm and after that the staff leave. The subdivision and current consent for 2 flats on No. 7 involved 4 cars using the driveway, the proposal for 72 plus cars is a huge increased impact on amenity. 35 Mr Gross's acoustic evidence says, in order to reduce the impacts, Mr Johnson is asked to have an acoustic wall on the boundary as high as his window heads, where at the moment he has a 6m separation for light and air between existing buildings. The acoustic wall including its masonry base is proposed to straddle the boundary as a common fence reducing the boundary setback to Mr Johnson's windows to 900 mm. The eventual discoloration and need for maintenance of any Perspex top section of the acoustic wall is a further impact. 36 I also have a concern in regard to parking other than drop-off/pick-up activity. The objectors raised long-stay activities such as interviews, information sessions, parent observation of their child or interactive purposes, seasonal events such as Christmas carols, pantomimes etc. It was not disputed these are all part of running a child-care centre. The engineers thought on those occasions parents could jam into the site using tandem parking in the carpark and the driveways since everyone would be arriving for the function and departing about the same times. 37 I cannot accept such a proposition as being practical, and there are no alternatives given the traffic constraints of and minimal parking on Donnelly St and the absence of any capacity for on-street parking on Brook St. 38 The primary statute applicable is the Willoughby Local Environmental Plan 2005. The applicable parts for the Residential 2(a) Low Density zone include the objectives in cll 2, 13D, 14A and 14B. 39 In the General Objectives of the Low Density Residential areas, there are: a) To provide residential areas free from any adverse impacts of non-residential uses, and c) To retain and enhance residential amenity………….., and e) To minimise the potential for adverse impacts of new development on the efficiency and safety of the road network. 40 The special objective for the Residential 2(a) zone, being where the site is, says: To accommodate dwelling-houses and other land uses which are compatible with the existing housing. 41 I have concluded that I do not need to go to the other matters in dispute in order to determine the matter. It is true that the houses in Donnelly Street do not have wonderful amenity now due to the proximity of the Warringah Freeway and Brook St and the narrowness of Donnelly St. But that is no reason to impose further impacts, particularly unacceptable impacts that would have substantial adverse impacts on their amenity, the efficiency and safety of their street, and individual impacts on the neighbour at No. 5 as referred to above. Issues 1 and 3 and 7 are fatal to the proposal. 42 Therefore the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits 1, 10, 12 and E, O and Q. _________________________ K. G. Hoffman Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.